‘Judicial modesty and restraint’

‘JUDICIAL MODESTY AND RESTRAINT’…. The first day of Judge Sonia Sotomayor’s confirmation hearings were dominated by opening statements, not Q&A, and most of the mini-speeches were predictable. But as Digby noted this afternoon, Sen. Sheldon Whitehouse’s (D-R.I.) remarks were “a thing of beauty.” They were, indeed.

“In the last two and a half months and today, my Republican colleagues have talked a great deal about judicial modesty and restraint. Fair enough to a point, but that point comes when these words become slogans, not real critiques of your record. Indeed, these calls for restraint and modesty, and complaints about “activist” judges, are often codewords, seeking a particular kind of judge who will deliver a particular set of political outcomes.

“It is fair to inquire into a nominee’s judicial philosophy, and we will here have a serious and fair inquiry. But the pretence that Republican nominees embody modesty and restraint, or that Democratic nominees must be activists, runs starkly counter to recent history.

“I particularly reject the analogy of a judge to an ‘umpire’ who merely calls ‘balls and strikes.’ If judging were that mechanical, we would not need nine Supreme Court Justices. The task of an appellate judge, particularly on a court of final appeal, is often to define the strike zone, within a matrix of Constitutional principle, legislative intent, and statutory construction.

“The ‘umpire’ analogy is belied by Chief Justice Roberts, though he cast himself as an ‘umpire’ during his confirmation hearings. Jeffrey Toobin, a well-respected legal commentator, has recently reported that ‘[i]n every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.’ Some umpire. And is it a coincidence that this pattern, to continue Toobin’s quote, ‘has served the interests, and reflected the values of the contemporary Republican party’? Some coincidence.

“For all the talk of ‘modesty’ and ‘restraint,’ the right wing Justices of the Court have a striking record of ignoring precedent, overturning congressional statutes, limiting constitutional protections, and discovering new constitutional rights: the infamous Ledbetter decision, for instance; the Louisville and Seattle integration cases; the first limitation on Roe v. Wade that outright disregards the woman’s health and safety; and the DC Heller decision, discovering a constitutional right to own guns that the Court had not previously noticed in 220 years. Some ‘balls and strikes.’ Over and over, news reporting discusses ‘fundamental changes in the law’ wrought by the Roberts Court’s right wing flank. The Roberts Court has not kept the promises of modesty or humility made when President Bush nominated Justices Roberts and Alito.”

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